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Darker v Chief Constable of the West Midlands, House of Lords, 27 July 2000

7 August 2000
The issues

Whether Police immune from a suit in respect of an action by former Defendants to criminal proceedings who alleged conspiracy to injure and misfeasance in public office

The facts

The Claimants had been charged with conspiracy to import cannabis resin and to forge travellers cheques. The charges that followed an undercover Police operation involving an informer called Titley. At Trial, proceedings were stayed permanently on the grounds of abuse of process following the Judge’s ruling that Police had been significantly at fault in the disclosure process. The Claimant was discharged.

The Claimant then commenced an action against the Chief Constable claiming damages for conspiracy and misfeasance in public office.

The allegations included claims that Police Officers had fabricated statements, knowingly allowing or inciting the informer to fabricate the evidence, manipulating the informer to prevent the Claimant having a fair Trial and using the informer as an agent provocateur.

The decision

The Defendants relied intealia on the rule that a party or witness had immunity in respect of what was said or done in Court. The question was how far that immunity extended.

It was clear that it extended to a statement prepared before the Trial setting out what the witness intended to say. Did it extend to every act that could be regarded as the preparation of evidence? In Sillcott the Court of Appeal had taken the line that there was no logical basis for distinguishing between making witness statements and investigation and other preparatory conduct with a view to making them.

However, there were considerations of weight pointing to different conclusions to that taken by the Court of Appeal in Sillcott. Public policy required that those who suffered a wrong should have a right to a remedy. The case for granting immunity restricting that right had clearly to be made out. The distinction, though fine, was a real one. For example, there was a distinction between a Police Officer who did not claim to have made a note but falsely said in the witness box that the suspect had made a verbal confession to him (for which statement he had immunity) and an Officer who to support the evidence that he would give in Court fabricated a note containing admission which the suspect had never made (there being no admission in respect of the latter). The Court of Appeal in Sillcott had been in error.

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